The Path of Constitutional Law

Publisher:

Vandeplas Publishing

Publication date:

2007-01-01

Authors:

Charles D Kelso(Professor of Law)R. Randall Kelso(Professor of Law)

ISBN:

978-1-60042-020-6

Description:

This Executive Summary is the text of the Companion Book to the E-Treatise, The Path ofConstitutional Law, the first comprehensive work on American constitutional law to be publishedonline. The E-Treatise details the usual doctrinal areas of constitutional law with copious supportingscholarship, but extends beyond doctrine to present the unique theme that American constitutionallaw can be divided into five eras characterized by distinctively different decisionmaking styles usedby the decisive Justices (original natural law, formalist, Holmesian, instrumentalist, and modernnatural law). Differences in decisionmaking style affect the choice and weight given to the varioussources for interpretation: text; context; history; legislative, executive, and social practices; judicialprecedents; and prudential considerations. Further, the Justices have had different style relatedpredispositions regarding structural issues such as states rights, perceptions on executive versuslegislative powers, and preferences on economic versus civil and political rights. The E-Treatisegoes on to describe systematic differences in how different interpretation styles reason in terms ofdeduction versus induction, use of categorical versus balancing tests, doctrine phrased as elementsto meet or factors to weigh, doctrine phrased as rules or standards, and whether any particulardecision is a question of law rather than a question of fact. The E-Treatise identifies Justices whouse the various styles, but goes beyond composition of the Court to describe political and socialevents that have influenced the Courts composition and reasoning of the Justices during each era.